Law Commons^™

Wage Taxes And Compensating S Corporation Officers And Members Of Llcs And Llps, John W. Lee

William & Mary Annual Tax Conference

No abstract provided.

Compensating Employees And Employee Owners, And Avoiding Problems With Payroll Tax And Executive Compensation Audits, Mary B. Hevener

William & Mary Annual Tax Conference

No abstract provided.

Fiscal Federalism In The United States, Walter Hellerstein

Presentations and Speeches

This presentation explores the fiscal powers of U.S. Federal and State governments with respect to taxation and spending.

The Effective Tax Rate Of The Largest Us And Eu Multinationals, Reuven S. Avi-Yonah, Yaron Lahav

Law & Economics Working Papers

This paper compares the effective tax rates of the 100 largest US multinationals to the 100 largest EU multinationals for the period 2001-2010, based on financial disclosures. The paper finds that despite the higher US statutory rate the effective tax rates are comparable and that EU multinationals tend to have a higher effective tax rate. The likely explanation is that EU corporate taxes have a broader base. The paper concludes that current US tax law does not subject US based multinationals to a competitive disadvantage against their EU based competitors.

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

Patriotism And Taxation: The Tax Compliance Implications Of The Tea Party Movement, Richard L. Lavoie

Akron Law Faculty Publications

Given the rise of the Tea Party movement, which draws strength from the historical linkage between patriotism and tax protests in the United States, the role of patriotism as a general tax compliance factor is examined in light of the extant empirical evidence. The existing research suggests that patriotism may be a weaker tax compliance factor in the United States than elsewhere. In light of this possibility, the Tea Party movement has the potential to weaken this compliance factor even more. Further, when considered in light of the broader tax morale factors that contribute to tax compliance, the Tea Party …

Should The States Piggyback On Federal Schedule Utp?, J. Richard Harvey

Working Paper Series

There has been much written about Schedule UTP since its announcement by IRS commissioner Shulman in January 2010. However, little has been written about issues other tax administrators may need to consider if they plan on adopting some version of Schedule UTP for their own purposes. State tax administrators are definitely thinking about Schedule UTP. In addition, the Australian Taxation Office has published a draft form for 2012 that is based, in large part, on the IRS Schedule UTP. Although corporations are hoping that most other tax administrators do not adopt some version of Schedule UTP, corporations will likely be …

Exclusion From Income Of Compensation For Services And Pooling Of Labor Occurring In A Noncommercial Setting, Douglas A. Kahn

Law & Economics Working Papers

Compensation for services, regardless of the form, constitutes income to the recipient. Consequently, the exchange of services by two individuals is treated as income to each. However, there are numerous examples of an exchange of services that the IRS has never sought to tax. The most common example is an exchange of services by a married couple who divide the household chores between them. The focus of this article is to propose a principled reason for not taxing those exchanges and to explore the limits of that exclusion. The author contends that the income tax operates exclusively on commercial transactions, …

A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp

All Faculty Scholarship

Most legal historians speak of the period following classical legal thought as “progressive legal thought.” That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete “classical” ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the …

Real Time Audit – It Is The Time To Act?, Reuven S. Avi-Yonah, Oz Halabi

Law & Economics Working Papers

The U.S. is facing one of its hardest economic crises. Its economy has not recovered from the 2008 downturn, and the light at the end of the tunnel is far, far away. The government and the Internal Revenue Service (“IRS”) are seeking revenue sources in order to reduce its budget deficit. However, raising the income tax rates is politically difficult and may lead to further loss of jobs. In this political situation, it is important to try to find ways to raise more revenue without raising tax rates. One possibility of doing so is “real time audit”: Auditing transactions when …

Money On The Table: Why The U.S. Should Tax Inbound Capital Gains, Reuven S. Avi-Yonah

Law & Economics Working Papers

In 1992, Chairman Rostenkowski introduced legislation that imposed US capital gains tax on foreign sellers of large blocks of shares (10 percent or more) in US corporations. The legislation was not a treaty override, although it added an anti-treaty shopping provision similar to those adopted for the branch profit tax in 1986. It also had anti-abuse provisions that addressed holding company structures. Today, the US faces a large budget deficit and seeks to impose higher burdens on its own multinationals. While that is also justified, there is no reason to let foreigners off the hook, especially since there is much …

Planning For Same-Sex Couples In 2011, Patricia A. Cain

Faculty Publications

This article is the published version of a CLE outline prepared for ALI-ABA in January 2011 and then updated in March 2011. It includes citations to relevant authority regarding a number of tax issues that same-sex couples encounter both under the income tax and under the estate and gift tax system. The outline also includes a list of states that recognize the status of same-sex couples as married, registered domestic partners, civil unions, or similar forms of recognition, and identifies those states in which legislative action recognizing same-sex couples is possible and those in which it is not, due to …

Schedule Utp: An Insider's Summary Of The Background, Key Concepts, And Major Issues, J. Richard Harvey

Working Paper Series

A former IRS Commissioner has called Schedule UTP “the biggest change in tax administration in the last 50 years”. Others have made less flattering comments, but most everyone working in the corporate tax community would admit it has been a big deal.

Based upon the author’s perception as a senior IRS official, this article is intended to be a comprehensive discussion of three topics. First, it will summarize the author’s perception of what led the IRS to require the filing of Schedule UTP. Second, it will discuss the key concepts, including why certain provisions were adopted (e.g., the much misunderstood …

Schedule Utp - Two Major Issues, J. Richard Harvey

Working Paper Series

Although Corporate America is not happy about Schedule UTP, most corporations seem resigned to the schedule’s existence and are now attempting to comply. In the process, Corporations have been addressing many technical questions, but two seem to be receiving the most attention: the definition of a “tax reserve”, and the application of the transition rule to pre-2010 NOL carryforwards.

The current definition of tax reserve is circular and it is not clear whether it includes certain scenarios (e.g., deferred tax reserves). The application of the transition rule is of significant importance to corporations that incurred NOL carryforwards during the recession …

The Unequal Tax Treatment Of Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

The tax treatment of intellectual property receives surprisingly little attention despite intellectual property's important role in the economy. In this article, Maine and Nguyen evaluate the fairness of the intellectual property tax system, identifying differences in the tax treatment of what appear to be similar transactions.

The Post-Tarp Movement To Regulate Banker Pay, Eric D. Chason

Faculty Publications

No abstract provided.

How Public Is Private Philanthropy? Separating Reality From Myth (Philanthropy Roundtable, 2d Ed. 2012) (With J. Tyler), Evelyn Brody

All Faculty Scholarship

No abstract provided.

Preglimony, Shari Motro

Law Faculty Publications

Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man's obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man's obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman's lost wages and other personal costs are her private problem, and if there is no child at the end of the …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Journal Articles

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Water, Climate, And Energy Security, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Civil society participation can facilitate sound energy, climate, and water governance. This article analyzes the dynamics of transnational decision-making. Part II discusses sound energy strategy in light of a shrinking water-resources base due to climate change. Part III considers how public participation in international decision-making can sustain trust in governments and strengthen the legitimacy of legal decisions. Part IV concludes that process and outcome are both integral to addressing water, climate, and energy challenges.

Using Payroll Deduction To Shelter Individual Health Insurance From Income Tax, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher and his colleagues assess the impact of state laws requiring or encouraging employers to establish ‘‘section 125’’ cafeteria plans that shelter employees’ premium contributions from tax.

The History Of Intellectual Property Taxation: Promoting Innovation And Other Intellectual Property Goals?, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

An important issue deserving scholarly attention concerns the proper role of the federal tax system in achieving intellectual property law's innovation objectives. The article traces the historic development of the specific tax rules governing intellectual property, identifies present areas of policy dissonance in the intersection of intellectual property and taxation, and calls for an appropriate legal framework for future intellectual property tax legislation.

The Loophole That Would Not Die: A Case Study In The Difficulty Of Greening The Internal Revenue Code, Lawrence A. Zelenak

Faculty Scholarship

Congress and the Treasury have commissioned the National Academy of Sciences (NAS) “to undertake a comprehensive review of the Internal Revenue Code of 1986 to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects.” The hope of the proponents of the NAS carbon audit is that Congress, once informed of the results of the audit, will respond by “greening” the Internal Revenue Code. This Essay cautions that a more environmentally friendly Code will not necessarily follow from the legislative consciousness-raising of …

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Taxation Of Financial Products: Options For Fundamental Reform, Alex Raskolnikov

Faculty Scholarship

The following is testimony to the joint hearing of the House of Representatives Committee on Ways and Means and the Senate Committee on Finance. The testimony discusses three benchmarks for evaluating the taxation of capital income in general and financial instruments in particular, summarizes three broad-based approaches to reforming the tax treatment of financial products, evaluates the impact of other fundamental reforms on the urgency of reforming the taxation of derivatives, and urges Congress to encourage the IRS to make detailed tax return data available for empirical research of revenue costs and other losses arising from derivatives-based tax planning.

Three Essays On Tax Salience: Market Salience And Political Salience, David Gamage, Darien Shanske

Articles by Maurer Faculty

This Article analyzes the literatures on how individuals understand taxation (i.e., tax salience). We evaluate how taxpayers respond to different presentations of tax prices both in their roles as market participants and as voters. We aim to combat naïve notions about tax salience that currently exert a pernicious influence on tax lawmaking. In particular, we argue that it is normatively desirable for governments to reduce tax salience with respect to market decision making, and that there is nothing objectionable about governments reducing tax salience with respect to political decision making.

An Equity-Based, Multilateral Approach For Sourcing Income Among Nations, Fred B. Brown

All Faculty Scholarship

The source of income rules used in the United States and elsewhere in large part establish the contours of tax jurisdiction exercised by countries. The source rules play a vital role in the foreign tax credit system applicable to U.S. persons with foreign investment or business activities. The source rules also play a central role in the United States’ exercise of source taxation over foreign persons with U.S. businesses or investments. Other countries likewise use source rules or their equivalent in applying foreign tax credit or territorial systems to their residents and exercising source taxation over nonresidents.

The current approach …

Income Tax Discrimination: Still Stuck In The Labyrinth Of Impossibility, Michael J. Graetz, Alvin C. Warren Jr.

Faculty Scholarship

In previous articles, we have argued that the European Court of Justice's reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production of desired levels of revenues, avoidance of double taxation, fiscal policy goals, inter-nation equity, and so on. In addition, we argued that the court cannot achieve consistent and coherent results by requiring nondiscrimination in both origin and destination countries for transactions involving the tax systems of more than one member state. We demonstrated that – in the absence of harmonized income …